Opinion
Docket No. 55, Calendar No. 44,268.
Decided June 6, 1949. Rehearing denied September 8, 1949.
Appeal from Wayne; Murphy (Thomas J.), J. Submitted April 12, 1949. (Docket No. 55, Calendar No. 44,268.) Decided June 6, 1949. Rehearing denied September 8, 1949.
Replevin by William Burton against Merle Price in Common Pleas Court to recover possession of personal property. Case dismissed. Plaintiff appealed to circuit court. Appeal dismissed and plaintiff ordered to return property. On contempt for failure to return property. Plaintiff adjudged guilty of contempt. Order entered nunc pro tunc dismissing the case. Plaintiff appeals. Reversed without prejudice.
Maurice D. Smilay, for plaintiff.
Joseph A. Craigen, for defendant.
We granted an appeal in the nature of certiorari from a conviction for contempt of court. Because of the very meager printed record, and in order to more fully understand the facts leading to the conviction for contempt, we have examined the entire record filed with the clerk of this Court. We include a brief resume of some of the facts in that record in order to understand those leading up to the conviction, though we base our decision on the printed record before us.
On November 6, 1947, William Burton, plaintiff and appellant herein, commenced a replevin suit in the common pleas court for the city of Detroit, against Merle Price, defendant and appellee herein, to recover possession of a refrigerator, a radio, a gas range, household goods and furniture. In the affidavit for the issuance of the writ of replevin he evaluated the property to be seized at $100 and filed a bond for $200. A writ was issued and the property seized and delivered to plaintiff. According to the records defendant claimed that he borrowed $100 from plaintiff agreeing to repay it together with $15 in 30 days; that he gave plaintiff as security a bill of sale which was duly recorded, but defendant evidently retained possession of the property until it was replevied. Defendant further claimed that he tendered to plaintiff the $100 plus interest but plaintiff refused to accept it and brought the replevin proceedings. Defendant claims the goods seized had a value of $900. There is no showing to the contrary. Plaintiff thus was able to secure goods of the alleged value of $900 by giving a bond of only $200 in the replevin proceedings.
Notwithstanding the fact that the common pleas court of Detroit is a court of record and has concurrent jurisdiction with the circuit court in replevin actions if the value set forth in the affidavit does not exceed $1,500 (CL 1948, § 728.1 [Stat Ann 1947 Cum Supp § 27.3651]), nevertheless both the statute and the court rules of the common pleas court of Detroit provide that the practice and procedure in replevin shall be governed, except as otherwise provided, by the provisions of existing laws regulating like actions before justices of the peace (CL 1948, § 728.14 [Stat Ann 1947 Cum Supp § 27.3664]). The statute provides for the issuance of a writ of replevin by a justice of the peace on the filing of an affidavit as to the value of the property to be seized and a bond in twice such amount by the plaintiff. The property seized by such writ is immediately turned over to the plaintiff. (CL 1948, § 674.1 [Stat Ann 1947 Cum Supp § 27.3345].) This differs from the practice in the circuit court where the law provides for an appraisal to determine the value of the property after it is seized by the officer and the giving of a bond in twice the amount of such appraised valuation before the goods are turned over to the plaintiff. (CL 1948, § 627.7 et seq. [Stat Ann § 27.1819 et seq.].)
The writ of replevin caused to be issued in the instant case was made returnable in 20 days by the plaintiff, notwithstanding the statute and the rules of the common pleas court specifically state that it shall be returnable in not more than 12 days (CL 1948, § 674.2 [Stat Ann 1947 Cum Supp § 27.3346], and Common Pleas Court Rule No 7, § 3). The judge of the common pleas court of Detroit on motion of defendant dismissed the action and ordered the return of the property to defendant. Plaintiff appealed the case to the Wayne circuit court. The appeal was heard on June 24, 1948, and the court entered an order dismissing the appeal and ordering the goods returned to defendant. Plaintiff ignored this order and on September 21, 1948, on application of defendant, the circuit court judge issued an order to show cause why the plaintiff should not be adjudged guilty of contempt because of his failure to obey the order of the court. After service of the order and adjournments because of plaintiff's failure to appear, the court on October 11, 1948, adjudged the plaintiff guilty of contempt of court. The court informed him that he must return the goods or be committed to jail.
On October 19, 1948, the plaintiff filed a claim of appeal to the Supreme Court. He also filed a motion for approval of a bond to stay proceedings in the circuit court. It was dismissed on October 25, 1948, for failure of the plaintiff to appear and a writ of attachment was issued for the arrest of the plaintiff. On October 28, 1948, we issued an order to stay proceedings conditioned on the plaintiff filing a bond for $500 and filing an application for leave to appeal within 15 days. On October 29, 1948, a motion was made by defendant for the entry of an order nunc pro tunc to correct the order of June 24, 1948, so as to provide for the dismissal of the cause instead of the dismissal of the appeal and again ordering of the return of the property. The order nunc pro tunc was entered November 5, 1948, and this Court granted leave to appeal on January 4, 1949. Obviously, if the appeal from the court of common pleas of Detroit were dismissed in the circuit court, that latter court would have no jurisdiction to make or enforce any further orders as jurisdiction on the dismissal of the appeal would revert to the court of common pleas of Detroit. Owing to the mistake in the first instance, the order was corrected by the order nunc pro tunc so as to provide for the dismissal of the case and the order of the return of the property. Such order nunc pro tunc entered by the circuit court to correct the former order could only operate as to the future.
Plaintiff, as appellant, raises only 2 questions on appeal. Plaintiff does not attack the propriety of the order nunc pro tunc, but he does contend, properly, that "it is not within the purview of an order nunc pro tunc to operate ex post facto so as to give force to an order void for want of jurisdiction." Eslow v. Albion Township, 32 Mich. 193. Plaintiff claims that inasmuch as the contempt proceedings were not based upon the order nunc pro tunc he cannot be held in contempt for the disobedience of the order which was not corrected at the time of the adjudication for contempt.
Plaintiff raises, however, the further question as to the right of the circuit court on the law side to enforce a civil remedy by process of contempt. This cannot be done in actions at law where a judgment has been rendered and on which execution, attachment, or garnishment may issue, or there is any other adequate remedy. See Haines v. Haines, 35 Mich. 138; Atchison, T. S.F.R. Co. v. Wayne Circuit Judge, 60 Mich. 232. Subsection 5 (CL 1948, § 605.1 [Stat Ann § 27.511]) provides for punishment for contempt for disobedience of any lawful order, decree or process of the court. Neither this subsection nor the other sections of the above statute (being the statute defining and providing for contempt) make any distinction between cases on the law or equity side of the court. Contempt is the common method of enforcing orders in the law actions of mandamus, prohibition, and habeas corpus. It is true that in General Motors Acceptance Corp. v. Ellar, 243 Mich. 603, we held that if the bond given on appeal was not sufficient a new one might have been ordered. However, in the instant case there was only a $200 bond given to seize goods of the alleged value of $900. The case having been dismissed on motion due to the void writ and again dismissed on the appeal, it was impossible to order a new bond in an adequate amount under the circumstances for no determination of the value of the goods was made by the court. Defendant has been deprived of his property and is entitled to its return. A judgment for damages for the value of the goods might be ineffective and it also would take time and expense to obtain a judgment in trespass; and it would mean considerable expense to defendant even if he were to sue out a capias ad respondendum or capias ad satisfaciendum, if he were entitled to such writs. For a long period defendant would not have the use of his household goods. The trial judge gave plaintiff ample time to return the goods before he adjudged him guilty of contempt. Plaintiff could easily have purged himself of the contempt by returning the goods. Surely the court has the power to enforce its order under the circumstances of the case, in which goods are obtained by an illegal process, followed by a flagrant disobedience of the order of the court to return the goods. We are in accord with the rule set down in Muscogee Motor Co. v. Cook, 238 Ala. 178 ( 190 So. 71), in which the court ordered plaintiff to file a proper bond or return an automobile seized in an action of detinue. The court held (syllabus):
"Where plaintiff illegally obtained possession of an automobile involved in detinue action and failed to obey order to give required bond or return automobile to defendant, plaintiff was in contempt of court."
In the present case the fatally defective process could not be corrected by requiring the giving of a larger bond. Plaintiff would have been in contempt of court had the order nunc pro tunc been entered prior to instituting the contempt proceedings. Under the circumstances the order adjudicating plaintiff guilty of contempt must be set aside, but without prejudice to any further action that defendant may see fit to take.
While ordinarily we give costs to the prevailing party in certiorari proceedings, due to the inadequacy of the record and briefs and the circumstances of the case, we order otherwise in accordance with Rule No 5, § 2, of the Michigan Court Rules (1945). Neither party will recover costs.
SHARPE, C.J., and BUSHNELL, BOYLES, REID, NORTH, DETHMERS, and CARR, JJ., concurred.